Chief Justice Warren E. Burger: We will hear arguments Number 121, Mayberry against Pennsylvania, is the counsel ready?

Mr. Reitz can you conveniently, do you think without discommoding yourself, present a section of your argument now in about seven minutes?

Mr. Curtis R. Reitz: I’ll try.

Chief Justice Warren E. Burger: Before we recess.

Mr. Curtis R. Reitz: Mr. Chief Justice, may it please the Court.

I think it's fortuitous that the morning ends with the case that involves a different kind of speech.

We have here a criminal contempt case arising from Pennsylvania which is in my research unprecedented in the law of criminal contempt.

We have a defendant who was on trial in 1966 under two very serious charges for prison breach and for holding hostage, in the course of a prison breach, charges which had a potential of life imprisonment under the second of those charges.

The trial lasted 22 days, 22 trial days, it stretched from November 7 until December 22 on a calendar.

During those 22 days of the defendant and two co-defendants were representing themselves on these very serious charges.

At the conclusion of the trial, after the jury verdict had been brought in on 22nd day, the trial judge opened the next session of Court on Monday morning and excoriated all three defendants, summarily convicted them of criminal contempt and held that as to 11 separate days, although, there were multiple incidents involved, that petitioner Mayberry had been guilty of criminal contempt.

On each one of those 11 charges as he recited the facts as he recalled them, he imposed a sentence of a minimum of one year and a maximum of two years in state prison.

After each one of those sentences following the first, he directed that each one of those sentences be served consecutively.

So that the first of his impositions of sentence was a sentence in aggregation of 11 years at a minimum and 22 years at a maximum for criminal contempt.

Chief Justice Warren E. Burger: Now, clarify for me if you will Mr. Reitz the relationship of these sentences collectively to the sentence on the substantive charge.

Mr. Curtis R. Reitz: He then proceeded Mr. Chief Justice to sentence on a substantive charge and he gave a sentence for prison breach of 10 years which was the maximum.

Five years minimum, 10 years maximum which was the maximum permitted by the statutes of Pennsylvania for prison breach.

Chief Justice Warren E. Burger: Now, is that consecutive?

Mr. Curtis R. Reitz: That was also consecutive.

He then imposed a sentence of 30 years maximum, 15 years minimum for the charge of holding hostage.

The aggregate of all of that was 40 years on the substantive crimes, 22 years for criminal contempt or a net sentence of 62 years with a 31-year minimum.

That was the sentence imposed that morning.

I'm told, although, I have not seen the documents itself that a few days later, he reversed the order of sentencing so that the -- although, he started that Monday morning with the criminal contempt sentence and then followed with the substantive crimes but he directed the sentence on a substantive crimes.

For 40 years, he served first and then the 22 years for criminal contempt.

But the net effect of the sentencing that morning was 22 years for criminal contempt, 40 years for substantive crime, 62 years total.

I am aware of no criminal contempt sentence which comes even within a long distance of that sentence.

There had been many studies made of criminal contempts over the years.

None of them reflected a sentence that is even one-seventh, who’s great for any kind of criminal contempt.

In that same session, the judge sentenced the two co-defendants also for criminal contempt.

On exactly the same methodology, he had it this per diem method and it was two years for each day on which he found a criminal contempt had been committed.

The sentences on the co-defendants were somewhat shorter, it were six days in the case of one defendant and seven days in the case of another.

Chief Justice Warren E. Burger: Would say that their conduct was as aggravated as it was with respect to this petitioner?

Mr. Curtis R. Reitz: In some instances, Your Honor, the conduct I would think would be substantially worse.

One of the co-defendants verbally threatened the life of the judge which never happened in the case of petitioner Mayberry.

Some of the obstreperous, disruptive conduct on the part of, one of the co-defendants, it seems to me that have been substantially worse from reading the records.

The 11 contempts found against the petitioner Mayberry involved nine counts, nine charges of what I have described as purely verbal epithets directed at the judge.

They were quite brief.

They're printed in total in the appendix.

They ranged in seriousness over a considerable variety of hyperbolic.

Chief Justice Warren E. Burger: I take it, if you would agree that these were very aggravated episodes of the conduct and utterance, would you not?

Mr. Curtis R. Reitz: Oh, they would be conduct Your Honor, which from any attorney, I think, would have been thought of as very aggravated in the instance of a layman defending himself, not an educated layman defending himself in a very serious Court with the kind of background from which he comes and the life which he has led, I’m not -- I don’t think I would have put the label aggravated on the verbal contents.

Chief Justice Warren E. Burger: Even after repeated, you wouldn’t concede this was aggravated?

Mr. Curtis R. Reitz: The warnings were repeated Your Honor, but the incidents for example, late in the trial, one of the two-year sentences is imposed for the defendant more or less expostulating an anger after having been prevented from developing a line of questioning that he was not arguing with fools.

The judge inferred from that, I think, relatively properly that the defendant was referring to the judge as a fool.

For that, he got two years in jail.

Justice Potter Stewart: You would concede, I suppose that the conduct of the defendant throughout this trial was fully outrageous, would you not?

Mr. Curtis R. Reitz: It is conduct which we certainly had not condoned.

Justice Potter Stewart: I don’t mean every moment of the trial but only -- but that it was continually and quite outrageous, would you?

I mean, don’t we begin with that hypothesis?

Mr. Curtis R. Reitz: I would not use the word “outrageous” Your Honor to describe --

Justice Potter Stewart: When he called the judge “a stumbling dog”, he called him a “son of a bitch”, he called him -- those are the two, that I remember from reading the briefs.

He called him a good many other things?

Mr. Curtis R. Reitz: He did indeed.

Justice Potter Stewart: On Court.

Mr. Curtis R. Reitz: He had some rather exotic like a --

Justice Potter Stewart: Some very foul language but the --

Mr. Curtis R. Reitz: I think the level of outrage that one develops in this kind of a case defends a good deal on what one finds the level of expectation from the speaker.

Before we recessed for lunch we had explored a bit of the factual history of this case and had begun some discussion of the seriousness of the verbal conduct on which the trial judge in this case sentenced a petitioner to so many years in jail.

I think, it’s fair to say that it’s perfectly obvious that the judge himself took a very serious view of the conduct of petitioner.

Indeed, the sentence alone indicates that he viewed it as the most serious contempt case of all time -- confirms that.

Whatever adjective one might say is adequate to describe the conduct and I think that will depend on many points of view.

It is perfectly clear that the case was treated as a very serious case and I would not urge the Court that this conduct was either meritorious or even to be condoned.

What I do urge on the Court and I think this is the critical point and it is underscored by whatever view of seriousness one takes.

But the procedure employed in handling this case was grossly disproportionate to the seriousness of the crime even if one views it as a rather petty crime.

The amount of procedural due process afforded to this petitioner in handling this case was nilled.

Chief Justice Warren E. Burger: But was it basically any different from the procedural due process that he had in the trial of the substantive charges?

Mr. Curtis R. Reitz: Oh, indeed Your Honor.

On a substantive charge he had notice.

He had the right to counsel.

He had the right to make preliminary motions including a motion to disqualify the judge.

Chief Justice Warren E. Burger: But what he had done about counsel in the substantive case?

Mr. Curtis R. Reitz: In the substantive case, he had waived counsel.

He had insisted on the --

Chief Justice Warren E. Burger: Although from that, is that he rejected affirmatively permanently, didn’t he?

Mr. Curtis R. Reitz: He had indeed.

He insisted on his right to try himself in that case which he is permitted under the Constitution.

But he was afforded the right to counsel.

Counsel was offered to him and indeed despite his waiver, the trial judge appointed the public defender to serve as an advisor to him during the trial and he was present throughout the trial and available for resource.

There was a jury, there was evidence produced, at time for argument not only on the issue of guilt but on the issue of a litigation of sentence.

The full panoply of a trial was followed in the case of the substantive crime.

None of that followed in the contempt case.

Chief Justice Warren E. Burger: May I ask this Professor Reitz.

Is it your submission that the real vice here is the proportion in terms of procedure or the disproportion in terms of panoply?

Mr. Curtis R. Reitz: MI think they go together Your Honor.

If the sentence in this case had been in the tradition of sentences for courtroom in de quorum a few days or a few dollars that happened in, for example, in the Fisher and Pace case, this Court reviewed many years ago, the amount of procedure that we traditionally have required in that kind of a case is rather slight, and indeed if the judge does as in the Fisher case impose or threaten to impose the sanctions during the course of the trial, the procedural requisites follow from the necessary situation.

In this case, we have an obviously much different situation of a very serious crime in the mind of the judge and it seems to me the nature of the penalty quite reinforces the total absence of any process.

There was no opportunity in this case to do many of the things that the commonwealth in the briefs suggest petitioner did not do.

He did not have an opportunity to challenge the judge.

He did not have an opportunity to waive counsel.

He did not even have an opportunity to ask for counsel.

He was suggested that he might have moved after the fact to modify sentence.

When one looks at the record as to what happened that Monday morning on December 22nd, after the judge had finished imposing the 22 years of sentence on the petitioner, he asked to be allowed to speak and the judge refused to hear a word.

At that stage, the judge would have none of his further participation in the courtroom proceedings.

So, the absence of his own advocacy at that stage to which the commonwealth alludes seems to me to be quite irrelevant.

In addition, --

Justice Hugo L. Black: Is the full record in the Court?

Mr. Curtis R. Reitz: It is indeed Your Honor.

The entire stenographic transcript is here.

We have printed only a small portion in the appendix.

Justice Hugo L. Black: It’s a long, long trial.

Mr. Curtis R. Reitz: It was a trial that lasted for 22 trial days for the last day being entirely sentencing, so it is a very long trial.

There was something in excess of 3,000 pages of stenographic transcript in the trial.

In addition to the fundamental due process argument, we make a separate argument which is in some ways even more basic and that was the opportunity -- petitioner was denied the opportunity to make any statement in mitigation of punishment in this case.

Mr. Curtis R. Reitz: It might indeed had been ceremonial because of the obviously overwrought state of the trial judge with an impartial tribunal, I am not convinced that a fairly substantial argument could not have been made in mitigation of the severity of the conduct.

Chief Justice Warren E. Burger: Of the conduct or the sentence?

Mr. Curtis R. Reitz: Of the conduct.

Chief Justice Warren E. Burger: How could you mitigate the conduct?

What explanation could possibly, even approach justification?

Mr. Curtis R. Reitz: As you study the record Your Honor, I don’t think one would need to approach justification in order to find there were indeed issues of provocation or explanation that might in some way have tempered the fury.

The defendant in this case for example attempted several times to introduce evidence that went to his conduct, immediately after he was apprehended.

The prosecution in the case in chief had put on a witness who testified that after he was apprehended, he had still resisted very forcefully, the arresting officer and there was a fight that took place going down the stairs in the hospital in which he was apprehended.

Petitioner several times attempted to introduce evidence that would have contradicted that.

Witnesses who would’ve denied that he was then in that state of flagrant resistance.

Every time he tried to produce that evidence, he was afforded by objection on the part of the District Attorney without explanation and objection sustained.

In the face of this, --

Chief Justice Warren E. Burger: Suppose that meant that the trial judge simply was taking position that there was no evidence that could bear by way of litigation or explanation of his conduct during the course of the trial.

I suppose if the trial judge had the benefit of Illinois against Allen at that time, he might well have removed this man from the courtroom, after his second outburst, but of course this was tried on before Illinois against Allen was --

Mr. Curtis R. Reitz: Yes, sir.

It was tried in 1966.

Chief Justice Warren E. Burger: Yes.

I wonder if our real problem in this case isn’t the severity of the sanctions and frankly that’s the way it seemed to me and I refer to that on that theory and then I maybe I've diverted from it?

Mr. Curtis R. Reitz: No Your Honor, I have not the slightest doubt that there is an enormous problem here with the severity of the sanction.

It is so far out of keeping with any of the customary standards to which we have had look in the past for sentencing and contempt cases that it simply looms as an unacceptable judicial act.

Justice William O. Douglas: Mr. Reitz, suppose we were to agree with this, that you will not-- about position, what we can do about it?

Mr. Curtis R. Reitz: That’s the major difficulty with the point Your Honor.

We do not have in Pennsylvania as we do not have in the federal statutes, a statutory maximum on sentences.

So far as the statute is concerned, the sky is the limit.

We have and I have attempted to collect in the brief, a series of benchmarks to which one could look for some sort of a ceiling to be imposed from the outside on what a sentencing judge can do --

Justice William O. Douglas: What would the --

Mr. Curtis R. Reitz: We have many statutory ceilings, none over six months.

Justice William O. Douglas: What would the constitutional provision be to which we've relied?

Mr. Curtis R. Reitz: The constitutional provision on which we rely in the brief Your Honor, is the Eighth Amendment, prohibition of cruel and unusual punishment.

Justice William O. Douglas: That’s the only one you think that would be applicable.

As far as this Court’s power to do anything about the sentence?

Mr. Curtis R. Reitz: I believe so, Your Honor.

That one might --

Justice William O. Douglas: I suppose --

Mr. Curtis R. Reitz: One might try to make a substantive due process argument but I don’t think that gives us any greater precision as to the limitations that one could impose through the Constitution on state trial judges.

It --

Justice William O. Douglas: Well, certainly at least we can do what we did in the Yates, in this case, can’t we?

Mr. Curtis R. Reitz: Quite right.

This Court lacks the supervisory power.

It lacks the normal, very broad appellate review that the Court has exercised on numerous occasions in reducing what it felt to be mild excesses by comparison on the part of federal trial judges.

The 11 consecutive counts, concurrent counts, in the Yates case impressed the Court as being grossly disproportionate to the offense in that case and the Court was able through a supervisory power to deal with that problem.

Chief Justice Warren E. Burger: We decided you were right on the constitutional argument, but what could be the mechanism to deal with it, undertake to deal it with ourselves or to remand it for reconsideration in a calmer atmosphere?

Mr. Curtis R. Reitz: I think Your Honor.

If this Court finds that the cruel and unusual punishment or the substantive due process argument has merits, some guidance would have to be created as to the outside limits that would be permitted for this type of sentence.

A remand of the Pennsylvania Supreme Court which has already faced this issue and rejected it with one dissenting justice, is not likely to generate the kind of standards that one would need for a national Constitution.

Shouldn’t they be established in the state courts in the first instance?

Mr. Curtis R. Reitz: There’s great virtue to that in some instances and many of the scholars of federal jurisdiction urged that in the ultimate, the only basic safeguard for all constitutional rights are state courts that all federal courts jurisdiction is subject to statutory limitation by Congress.

But in this instance, we are in I think such a brand new area with cruel and unusual punishment standards that unless the Court is able to provide some reasonable guidance to state courts, my expectation would not be that the results would be a very happy in the first instances.

Justice William O. Douglas: May I ask Mr. Reitz, does the Pennsylvania Supreme Court have a power comparable to our so-called supervisory power which I guess is what we used in the Yates case?

In other words, could that Court have reduced the sentence?

Mr. Curtis R. Reitz: The Pennsylvania courts take a very narrow review, a narrow position on their appellate review sentences generally.

Their law of contempt is relatively unformed.

This is the first case, which I'm aware on which the Pennsylvania Supreme Court has ever faced an in-Court contempt problem.

Justice William O. Douglas: Do I correctly infer from Justice Jones’ treatment of the questions as whether the sentences constitute cruel and unusual punishment that that’s the only way this was put to the Pennsylvania Supreme Court that they did constitute cruel and unusual punishment?

Mr. Curtis R. Reitz: That argument was put, that was not the sole argument put --

Justice William O. Douglas: Well, I notice the opinion doesn’t seem to address itself to any other basis for the challenge to the sentence.

I'm looking at page 14 of the record.

Mr. Curtis R. Reitz: In the Pennsylvania Supreme Court, all of the arguments there before this Court were raised in one fashion or another, Mr. Mayberry there represented himself.

The Court appointed an attorney to represent him, who also filed the brief and they raised between them every issue that is now before this Court.

Chief Justice Warren E. Burger: Well, Professor Reitz, didn’t Justice O’Brien assume in his separate opinion that there was something in the nature of supervisory power that imposed the duty on the Supreme Court of Pennsylvania to examine the sentence for the contempt?

He is persuaded that in comparison with the statutory maxima for a whole raft of offenses including second degree murder being less than the sentence imposed on this defendant for conduct which bears no resemblance to the atrocious assaults and homicides that have very lesser statutory maximum that the sentence was impermissible.

Since, he was a lone justice on that issue, he was not forced to face the question of what remedy could be provided.

Mr. Curtis R. Reitz: I think an argument can be built on the basis of existing data that a maximum of six months is a customary standard that is now so well entrenched by statute and case law that it is the outside limit for a sentence in a contempt case absent a statute permitting a longer one.

All the statutes stop short of that.

Many as I've indicate stopped far shorter in terms of hours or days for such punishment.

Chief Justice Warren E. Burger: If the judge had made all these sentences concurrent one with another, there were 11, weren’t they?

Mr. Curtis R. Reitz: There were 11.

Chief Justice Warren E. Burger: If it made him concurrent, would you be here?

Mr. Curtis R. Reitz: Yes indeed, Your Honor.

I think we would, that is --

Chief Justice Warren E. Burger: It is two years on each, was it?

Mr. Curtis R. Reitz: Two years on each and that is still twice as long as the Yates case which was one year, 11 times concurrently and that is still in my judgment an enormously over broad sentence for the kind of contempt that this record contains.

It is only the because of the fact that the multiplier of 11 is added that the seriousness of that first sentence can be lost sight of.

A two-year sentence is itself, one of the most severe in the whole catalog of criminal contempt sentences.

Justice Hugo L. Black: Suppose they had instead of sentencing him for contempt put the charge against him on the legislative enactment which provided that a person who had appeared before the Court in a serious manner as this man here had attempted to stop it, he committed a crime, and tried him, indicted, tried him before a jury, given him a lawyer, given him all the protection that could be afforded.

Would you still argue as seriously as you do now, that that would violate the cruel and unusual punishment charge?

Mr. Curtis R. Reitz: If the same sentence were imposed as a result of that and the statute provided for a crime of obstructing justice --

Justice Hugo L. Black: That’s right.

Mr. Curtis R. Reitz: I would not make the argument, Your Honor.

Indeed, I make the point in this case --

Justice Hugo L. Black: Well, that really is the basis of the complaint, isn’t it, not the cruel and unusual punishment section?

Mr. Curtis R. Reitz: Well, Your Honor.

In this case, the Pennsylvania contempt statute provides a limit requiring obstruction of justice.

The first nine counts in this case to me cannot be brought within the language of obstructing justice.

Justice Hugo L. Black: Yes, perhaps --

Mr. Curtis R. Reitz: They were insolent, they were discourteous but they were not in any way blocking the advance of the trial.

Justice Hugo L. Black: It is treated as contempt, all is just treated as any other crime.

Now, you want to punish the man for doing something seriously wrong.

They should take fix this punishment at 25 years and he’d stood up in this courtroom, decide in this table of the Court and had to be taken control of and it interfered with the Court, put foul names in against it, would you think 25-year that the legislative department would be committing and violating the cruel and unusual punishment to say that’s so serious?

Mr. Curtis R. Reitz: If you may Your Honor, I take a very different view if we have a legislature, having faced the question and establishing a statutory parameter to the permissible sentences.

In this case, we have no such legislative judgment to which either the state judges or this Court can look --

Justice Potter Stewart: Well, I suppose, the legislative judgment is to put no limit on it.

Now, you do have a statute in Pennsylvania, appears on page 2 of your brief and I suppose the Pennsylvania legislature can be assumed to be aware of the action of the legislatures in many other states as it put various limitations on it and this one didn’t.

Mr. Curtis R. Reitz: It has not been reviewed since I think all of the statutes in which they do appear statutory maxima have been of more recent vintage in that.

There has been nothing prior to this case in which the Pennsylvania legislature or any other legislature could be given notice of the enormous extension of customary power to which a trial judge might go.

Justice Hugo L. Black: What you’re doing is talking about a case with a same judge as a witness to it who is assaulted by, who is guilt (Inaudible), tries the case, is not a separate crime where he is put before another judge where the jury disappears, given a lawyer and given all the protections of due process of law as I understand, what I understand, due process to the one which is a trial in courtroom on unbiased judge in an unbiased jury?

Mr. Curtis R. Reitz: I could not agree with you more Your Honor, the requirements --

Justice Potter Stewart: On the other hand, Mr. Reitz, may I suggest, if in this summary procedure, the conclusion of this trial judge for all of this contemptuous behavior had summarily sentenced the fellow for three days in jail, would you find that objectionable or violation of any constitutional right?

Mr. Curtis R. Reitz: No, Your Honor, I would not.

I would accept as so well grounded in our law of criminal contempt that a judge has within that very narrow range of customary penalties that the kind of restraint that this Court referred to many years ago in the Anderson case, that that is not -- that can be handled without the full panoply of a trial.

Chief Justice Warren E. Burger: Where do you draw the line?

Would you undertake to draw line?

Mr. Curtis R. Reitz: Well, I suggested in the --

Chief Justice Warren E. Burger: Within the 22 years?

Mr. Curtis R. Reitz: I've suggested in the brief that a place to stop is the place this Court stopped in the Bloom case, in regard to the right to jury trial.

I do not think that is the right place to stop.

I do not subscribe to that.

There was of course another jury trial and --

Unknown Speaker: (Inaudible)

Mr. Curtis R. Reitz: In light of De Stefano case Your Honor, I think it would be futile to make that argument now.

I think the line has to be drawn at a very low level at the point where the number of days and I would think it is number of days, reaches beyond the stage where we can tolerate the total absence of anything we call a trial.

And that it seems to me has to be very short and has to come within I think very well recognized ancient limitations.

Chief Justice Warren E. Burger: Well, just test it for size, suppose you gave him 60 days on first offensive conduct, would you think that was acceptable?

Mr. Curtis R. Reitz: I would not Your Honor.

Chief Justice Warren E. Burger: And then, when it is repeated he gave him another 60 days and continued that right through then he would have what -- 22 months wouldn’t he?

Would you be here then?

Mr. Curtis R. Reitz: Yes, indeed.

I think that is the point at which certainly a trial becomes quite relevant, an impartial judge and the opportunity to make the necessary defense and litigation --

Chief Justice Warren E. Burger: No, but then let’s stop.

Let’s go back.

The first misconduct occurs after the jury has left the room for the day.

He calls him in and sentences him to 60 days for that offensive conduct and you concede, no other process necessary, I take it.

Now two days later, he repeats that and the judge repeats the same process.

You mean that after the first few bites, they're all free?

Mr. Curtis R. Reitz: No, Your Honor.

I would not even concede on the first 60 days.

Chief Justice Warren E. Burger: You, you wouldn’t?

Mr. Curtis R. Reitz: 60 days is a --

Chief Justice Warren E. Burger: The jury trial for 60 days --

Mr. Curtis R. Reitz: No.

No, a trial Your Honor.

This Court has drawn the limit of jury trials for the moment of six months.

It seems to me that at least one can say that six months is the line that which one is now clearly entitled for trial.

I think that is a necessary almost a priori argument from the Bloom decision itself but it seems to me that’s way below six months before one can say that you have a penalty, that is so trivial, so much a reprimand, so much within the ambit of work.

Contempt has traditionally lane of discipline of lawyers.

If one looks at contempt cases, it’s the lawyers who are usually the defendants in contempt cases.

In those cases, the remedies are as the appendix in our brief indicates extremely short, a matter of one, two, three days and in that range I think, the custom is now well-established that a judge can impose that kind of sanction.

I would not attempt to persuade the Court to change that now but 60 days is well beyond that limit Your Honor.

Well beyond.

Justice William J. Brennan: Of course, this gentleman wasn’t a lawyer.

That commitment of the -- maybe it imitates -- fundamentally this might be wish to deter lawyers whose jobs depend on their acting like lawyers.

This gentleman was representing himself --

Mr. Curtis R. Reitz: Well, this Court has faced and I think well resolved the problem of deterrence of persons who would disturb the courtroom in the Allen case.

There are many devices which can be used that do not involve the imposition of criminal punishments, summarily imposed by the judge that can be used for deterrence, this is not the only deterrent.

Chief Justice Warren E. Burger: The problem in Illinois against Allen power of contempt was specifically reserved in Justice Black’s opinion.

Mr. Curtis R. Reitz: The power to sight for contempt, not the power to impose a contempt sentence and I think as Justice Black’s opinion makes clear that citation is a notice which requires a subsequent trial.

A trial at which the defendant as Justice Black noted could again be disorderly.

But I read nothing in the Allen case that would justify summary in position of criminal punishments under the heading of contempt.

Chief Justice Warren E. Burger: Unless it were three days?

Mr. Curtis R. Reitz: In the Allen case, it’s peculiar Your Honor.

Chief Justice Warren E. Burger: Now, our reservation before was that if it were three days, you would think that was alright?

Mr. Curtis R. Reitz: I would indeed.

I would indeed.

Chief Justice Warren E. Burger: Very well.

Miss Los.

Argument of Carol Mary Los

Ms Carol Mary Los: Mr. Chief Justice and may it please the Court.

We were originally of the opinion that the entire trial transcript should be printed in the appendix for the Court because we felt that only by reading the entire trial transcript could this Court get some idea of the feelings, and the tensions, and the pressures that existed throughout this long five week trial.

Unfortunately, going through the trial transcript we realized that by the court's stenographer merely really taking down the words that happened that so much missed the Court’s stenographer or could not be taken down simply in the method of words that this Court could not feel simply from a cold record, the tensions, and the pressures that existed that day or the response that the petitioner was able to evoke, not only from his co-defendants or from the jury, but from the spectators who were in the courtroom at the time.

Apparently, it seems to me that the petitioner might be able to take advantage of this cold record in denying, first of all, that he is an extremely intelligent and articulate man.

And secondly, that he was not the ring leader or the instigator of all of these contempts.

If I may just for a few moments to recap some of the events of the trial that might not necessarily be printed in the trial record.

This was the second trial that had begun in these charges.

The first ended in the mistrial when the petitioner alleged that a prospective juror had seen him handcuffed to a sheriff, a mistrial was granted and the petitioner boasted at this time that he would never be brought to trial in these charges, that if all those failed, he would break out of jail.

He threatened the prosecutor and stated that prosecutor would never see him from the trial in these charges for prison breach.

These weren’t idle threats.

Mayberry had previously broken out of the Eastern Penitentiary in Pennsylvania, the Western Penitentiary in Pennsylvania, the Graterford prison he attempted a prison breach and during the course of this trial, he was able to break out at the Allegany County Jail.

This prison breach occurred almost in the middle of this particular trial.

At the time it occurred on a weekend, the petitioner and his two co-defendants as well as three other inmates of the Allegany County Jail broke out, kidnapped the city police officer, who was on duty at that time and were able to get a good distance from the city before they were captured.

It was only because the gun that they had secured from the police officer misfired that a police officer was not killed at close range.

As I say, this occurred during the course of a trial and does not necessarily appear as the matter of record.

But in any event, petitioner from the start was deemed to be a very dangerous individual.

The courtroom, understandably contained the great number of sheriff’s deputies.

Trial began before Judge Fiok and Mayberry as has been set forth before decided that he wanted to act as his own counsel and refused the help of counsel that was appointed for him.

Counsel, nonetheless appeared throughout the trial and was there at the sentencing for the contempt citations.

Mayberry requested from the trial judge that he permitted to come to sidebar, whenever he wished, the trial judge refused this.

First of all, I believe that because Mayberry was a very dangerous individual and a search of Mayberry’s legal papers during the trial revealed that he had placed sharpened razor blades inside of his legal pad.

Secondly, one of the co-defendants had been throwing pencils at the judge, during the trial.

So I mean, there’s a certainly reasonable grounds to believe that the judge himself might have feared that his life was in danger.

There was a bodyguard especially assigned to the prosecutor after the threats and the petitioner became so numerous across the counsel table.

These again are not recorded in the trial transcript because the court stenographer was not within the hearing range.

Nonetheless, the request for sidebar was refused.

Mayberry started a series of taunts to the judge which continued throughout the trial.

His attitude was this, “I want an explanation that satisfies me right now and if I don’t get it, I'm not going to continue with this trial.”

For example, a very good example I think occurs at the end of trial when he closes to the jury.

He is told that he will only be permitted an hour to close.

The end of the hour, he is given an additional 15 minutes, Mayberry decides that he wants just to continue his closing to the jury.

When he refuses to hear the judge’s warnings, he is taken out of the courtroom and another co-defendant is permitted to close.

When Mayberry is brought back in again, he gets off and starts closing to the jury again, he’s again taken out of the room.

So that the trial judge attempted on several occasions, various different methods, he had him taken out of the room at least 10 or 11 times.

When brought back, Mayberry proceeded the same way as when he had left off, when he was taken out of the room.

He was bound and gagged.

But unfortunately, he was able to shout through the gag and pound on the floor.

His shoes and the shoes of his co-defendants were removed.

He still raised such a ruckus that the trial judge was unable to charge to the jury.

Now, when Mayberry would direct one of his assaults to the trial judge, petitioner’s brief would have you believed that nothing merely happen except the judge said, “Continue on with your questioning.”

What happened precisely was this, Mayberry was greatly amused by the fact that there were loud gossips in the courtroom that the jury was shocked that some of the spectators were shocked.

He would burst out into this loud laughter which was followed by his co-defendant, who would hoot and howl, and applaud, and stamp their feet.

And in fact, the reason we say that Mayberry was the ring leader here was that when he would return to his seat, he would lean across to the prosecutor and say, “Now, watch this.”

And would stand up and repeat something.

Justice Potter Stewart: There were two co-defendants, were there Miss Los?

Ms Carol Mary Los: Yes, they were Your Honor.

Justice Potter Stewart: And were they cited for you?

Are -- they haven’t --

Ms Carol Mary Los: Yes, there were.

What Mayberry did was he would lean to them and say, “Now, it’s your turn”, or after he would repeat something, if one of the men wouldn’t get up, he’d give him a nudge inside and the co-defendant would spring up and direct some abuse to the judge.

Justice Potter Stewart: And they were both found guilty of criminal contempt, were they?

Ms Carol Mary Los: All three of them were, Your Honor.

Yes.

Justice Potter Stewart: And then what happened to their cases in the Pennsylvania Court?

Ms Carol Mary Los: They did not take the cases on appeal.

Justice Potter Stewart: The co-defendants.

Ms Carol Mary Los: That is true.

Justice Potter Stewart: What sort of sentences did they get?

Ms Carol Mary Los: They got one to two year sentences precisely as Mayberry had. Only they were not cited for contempt as many times.

I believe one was cited six times and the other was cited for seven different occasions during the trial.

Justice Potter Stewart: Is this very grounded picture you’ve given us, is that what one gets on the record or were you at the trial, Miss Los?

Ms Carol Mary Los: No.

I was not at the trial but I had the benefit of talking with the prosecutor on numerous occasions and again, I was in the law school at the time of this trial.

But there was a great deal of publicity and in fact, that this was a case of some notoriety at the time.

Justice Potter Stewart: This is in Pittsburgh?

Ms Carol Mary Los: Yes, Your Honor.

This is in Pittsburgh in Allegany County.

Incidentally, after Mayberry would nudge one of his co-defendants and asked them to indicating to them to stand up and raise some ruckus.

He would then after they had addressed something too rude to the trial judge, he would stand up and ask for a mistrial and when that was denied, he would ask for severance on the grounds that he was prejudiced in front of the jury about what his co-defendants had said.

There was also in the back of the courtroom, a small group of men who were later identified as being inmates, who were either out on bond, who were released from prison, who were known to Mayberry.

And after he would direct something to the judge, he would turn around in laughing manner toward them, they would again applaud and would stamp their feet and so it’s to create such a disturbance --

Justice Thurgood Marshall: There were penitentiary inmates in the back of the courtroom and the judge couldn’t put them out?

Ms Carol Mary Los: Oh, no Your Honor.

They were removed from the courtroom.

But what -- I am saying is that the purpose of his remarks to the judge were not just to excoriate the judge, the purpose was to create sufficient ruckus so that there would be delay in the trial.

Unknown Speaker: Was there -- as much as it this is within authority of trial, was there any effort in the legislature to get legislation to reveal to this kind of business?

Ms Carol Mary Los: I am not aware of any I know that of course that none in the interim period has passed.

I cannot say with any certainty that there has been legislation proposed.

As I said, binding and gagging didn’t do any good.

And at first the judge was leery in the sense of saying anything to Mayberry about his contumacious conduct in front of the jury.

I think, very honestly that he felt that he didn’t want to prejudice Mayberry in front of the jury presiding him for contempt and again, Mayberry was acting as his own counsel.

So, for the judge to have the jury leave the courtroom and cite him specifically might not have served the purpose or might only -- the end result had Mayberry so inflamed as to continue this course of conduct probably even in a more serious thing and eventually cause the trial to stop.

Now, we almost concede that we are concerned about the 11 to 22 years sentence.

It does in view of previous contempts, that have come before this Court, seem rather severe.

We maintain however, that the actions of Mayberry here were so outrageous and so outlandish as to far exceed anything that has come before this Court.

Justice Byron R. White: Now, how are we really supposed to if these facts are relevant to that judgment, how are we supposed to get them before us when they aren’t in the record?

Ms Carol Mary Los: Yes.

That is, I think, the major difficulty before this Court doing anything to lessen the sentence.

I think the only course that can be entertained at this point if you feel that 11 to 22 years is cruel and unusual punishments --

Justice Byron R. White: The habeas corpus?

Ms Carol Mary Los: -- is to remand on a habeas corpus, Your Honor.

To hold a hearing, to determine all of the relevant facts that must come before this Court can determine that 11 to 22 years was unjustified.

Justice Byron R. White: I think he has a state post conviction, Miss Los.

Ms Carol Mary Los: Yes, we do Your Honor.

Justice Byron R. White: I suppose it would have to go there to the federal habeas --

Ms Carol Mary Los: Yes, that’s true.

We do have a vehicle to deal with this --

Justice Byron R. White: What do you suppose the purpose of giving these contempt sentences was?

Certainly, it wasn’t in control of the trial, was it?

Ms Carol Mary Los: No, because certainly they were given after the trial.

I think the purpose --

Justice Byron R. White: Was it to deter Mayberry?

Whenever doing anything like this again, I don’t suppose?

Ms Carol Mary Los: Well, I think that might have been one of the ends.

I think, secondly though, because the case did have a great deal of notoriety.

Because of the fact that a lot of inmates penitentiary or prisoners who are out on bail or who rather bond or had not yet come for trial were watching this closely.

There’s evidence by a great number of people who came into the courtroom and then a number that had caused a commotion along with Mayberry.

I think the purpose was to show that a man cannot do this and get away with it.

And that’s the fact that there was so much notoriety, I'm sure the trial judge realized that the prisoners and those come into trial would watch very closely to see how Mayberry was dealt with.

Justice Byron R. White: Why shouldn’t, Miss Los or do you think it’s at least bit of sensible to suggest that if a judge thinks that an act in the courtroom is so serous that it justifies the two-year sentence that he must not try it himself, that he is going to wait until after trial?

Ms Carol Mary Los: I think the question here ought to be, “What should he have done in 1966?”

I think in 1966 under due process standards as the Court, the Pennsylvania Court interpreted them and the Pennsylvania Supreme Court interpreted them relying on In re Oliver, the trial judge had the absolute right to sentence the petitioner as the hearing judge.

Justice Byron R. White: But would you know that whenever -- isn’t it the rule that when it appears that a judge is so personally involved and so insulted by contemptuous act that he shouldn’t be the one to try the contempt?

Ms Carol Mary Los: Certainly, if the remarks are directed personally to him.

It’s our belief --

Justice Byron R. White: That’s clear.

Somebody's statements were pretty personal --

Ms Carol Mary Los: But yes, Your Honor.

But the purpose of them I think, and I think the trial judge was able to see this.

It was directed towards stopping the trial.

Justice Byron R. White: But when a judge reacts so strongly to having a personal remark directed at them that he gives a man two years for it?

Ms Carol Mary Los: But that’s an assumption we’re making Your Honor.

I think he felt that the administration of justice and that the proper handling of this trial was insulted, so to speak.

Justice William O. Douglas: Does Pennsylvania have contempts through the Court apparent in the courtroom and that required him before another judge.

Do you have this in Pennsylvania --

Ms Carol Mary Los: No, Your Honor.

The statute is set forth for you.

This is the --

Justice William O. Douglas: This is another federal rule to make it --

Ms Carol Mary Los: Yes, Your Honor.

We have no distinction of that sort.

No, Your Honor.

We don’t.

But my only answer to that really is and I honestly feel that the judge himself did not feel these were personal attacks upon his own character.

I think he understood them in the context of what Mayberry was attempting to do.

Justice William O. Douglas: Let me ask.

Let’s assume that the trial was held today on the same events in Pennsylvania, let’s assume the same trial took place and the same events happened today?

Ms Carol Mary Los: Then I think, we have a completely different ball game because we are then bound by ruling of this Court that if the sentence can exceed six months, certainly, --

Justice William O. Douglas: Well, what's the reason -- what’s the reason for saying that the judge here -- if he wants to give more than six months, he has to have the jury.

What's the reason for that?

Ms Carol Mary Los: I think the severity of the sentence Your Honor.

I believe, it’s the feeling of this Court --

Justice William O. Douglas: Well, I know but what's the reason for it?

What's the reason for having the jury at all?

Ms Carol Mary Los: I think because there, a man’s right to be tried by his on peers where a serious sentence is involved and a serious crime is involved overrides the administration of justice.

In other words, the (Inaudible) to the Court which should be dealt with by the judge himself, so --

Justice William J. Brennan: So longs the -- oh, excuse me.

Ms Carol Mary Los: Yes, Your Honor.

Justice William J. Brennan: I don’t mean to interrupt.

Ms Carol Mary Los: I was just going to say, we will not deny that this is a serious a offense.

But we must talk in terms of 1966 standards and not 1970 if I may --

Justice William J. Brennan: I’m not talking about a jury, I’m talking about a judge?

Ms Carol Mary Los: I don’t feel as if another judge would have to hear this case because it is my firm belief, that while certainly the phrase “a stumbling old dog” were directed toward the judge or “I'm not going to argue with fools”, meaning the judge.

I think the purpose was clearly understood.

Justice William J. Brennan: Do you find any basis and you think that you discovered the case is saying that or a judge chooses to not to exercise his contempt power on episodes of the courtroom are heard or to postpone the holding after the trial in what he is dealing with in the absence of the state’s statutes, it is serious offense?

Ms Carol Mary Los: No, Your Honor.

And the reason why I feel here that this was not just one continuing offense.

These were separate events and correctly separate citation.

Justice William J. Brennan: That’s not the way I’m conceding.

Ms Carol Mary Los: Yes.

Justice William J. Brennan: But they were not dealt with at the time by the judge during the course of trial, perhaps a very good reason.

Ms Carol Mary Los: First of all, the sentencing was not given out until the end of the trial.

The petitioner and his co-defendants were warned repeatedly by the trial judge and in fact at one point, judge called counsel before him and expressly asked counsel to go through the possibilities of contempt and the actions of their clients because he felt that they should be well aware that their actions we contemptuous.

Now, the fact that he waited until the end of trial, I think, it was done solely to protect the petitioner and his co-defendant.

So that the petitioner wouldn’t become first of all, so inflamed and so enraged that he would stop the trial by means of letting the jury know and again, getting so out of hand that the trial couldn’t continue.

I think that since his purpose here was to protect the petitioner and certainly to protect the common laws right to see the case through to its just ends, the petitioner cannot, now say, well the judge couldn’t do at the end of trial what he could do in the middle of trial.

Justice Thurgood Marshall: This law is assuming that some people would consider these violent verbal attacks as assaults.

If he were charged with that he would have gotten a jury, wouldn’t he?

Ms Carol Mary Los: If he had requested a jury.

Yes, Your Honor that is true.

Justice Thurgood Marshall: 20 -- it is --

Ms Carol Mary Los: 11 --

Justice Thurgood Marshall: Is Mr. Reitz corrected 20 years as sentenced for second degree murder in Pennsylvania?

Ms Carol Mary Los: Yes.

10 to 20 years, Your Honor.

Yes, for second degree.

Justice Thurgood Marshall: And this man has 22?

Ms Carol Mary Los: Your Honor, we’re talking here about an (Inaudible) to public justice and not to one individual.

We’re talking about a man disrupting the orderly administration of justice, affronting the dignity and honor of the Court.

Justice Thurgood Marshall: We’re also talking about the judge trying him after the man called him “a stumbling old dog” or something.

Ms Carol Mary Los: That is true but I fully believe that the judge understood, Mayberry’s purpose in doing this was not directed toward him as such.

Only because Mayberry’s chief purpose was to stop the trial.

Justice Thurgood Marshall: How in the world could he know that and how in the world do you know that he knew that?

Ms Carol Mary Los: I believe he knew that, Your Honor.

Justice Thurgood Marshall: Do you believe it, I agree with that.

Ms Carol Mary Los: For these reasons.

First of all, as I say Mayberry had threatened several times and he boasted that the trial would never reach its completion.

Secondly, he --

Justice Thurgood Marshall: That’s not in this record, right?

Ms Carol Mary Los: Because there -- it was not part of testimony, Your Honor.

Justice Thurgood Marshall: We deal with what we have before us, don’t we?

Ms Carol Mary Los: Right.

And that is why I'm asking you that you are --

Justice Thurgood Marshall: I'm not in the moment not agreeing that you tell the truth.

I mean, but the point is we got a record here.

Ms Carol Mary Los: And that’s why, I respectfully ask, that if you feel this cruel and unusual punishment that you remand it for hearing, so that all the facts can be put before the Court because as the record stands, it’s a very cold record and as exerted, it appears as if Mayberry might have been justified for some of the comments that he made.

I think that it so distorts what actually happened to trial that this Court cannot make a determination as to whether or not that was actually cruel and unusual punishment without a complete hearing on what actually occurred.

Chief Justice Warren E. Burger: When you talk about a complete hearing, are you suggesting that this be a complete hearing in a due process sense of a trial with the jury before it could --

Ms Carol Mary Los: No, I'm not Your Honor.

Because I still believe that 1966 standards must apply and as such in 1966, Pennsylvania law rely -- the interpretations by the State of Pennsylvania, relying upon In re Oliver were that a judge could sentence summarily without due process safeguards that are now essential.

For example, in the serious crime and we will concede that 11 to 22 years as a serious offense.

Justice Hugo L. Black: Did you have any idea that this man had been indicted by a jury or glory of time given him a close rough trial like anybody else gets charged with crime and there wouldn’t have been any difficulty of getting him convicted?

Ms Carol Mary Los: Absolutely none, Your Honor.

Justice Hugo L. Black: In a fair and impartial trial?

Ms Carol Mary Los: Absolutely no difficulty.

I think, absolutely he weren’t been convicted.

Justice Hugo L. Black: Without any -- would you have any chance then to get an unbiased judge and an unbiased jury?

Ms Carol Mary Los: That may very well be true, Your Honor.

But I don’t think that officiates the proceeding that we had here.

I think the judge did have an absolute right to sentence as he did summarily.

Justice Hugo L. Black: But what if they have sentenced him to life?

Ms Carol Mary Los: I think he had the right under the acts in cruel and unusual punishment, absent that argument, I think he absolutely had the right to do that.

Justice Hugo L. Black: Well, I agree with the seriousness of the crime fully.

I have no doubt about that, I don’t worry about the punishment for 22 years, trying to disturb and destroy possibility of a court procedure.

The only thing I'm worried about it in the case is that the judge tried him while he’s having that puts a man charged with the serious crime ought to have.

That is a trial of an impartial judge and according to due process?

Ms Carol Mary Los: If he was entitled to a trial though, Your Honor.

I disagree with you that he was.

I think that the judge had the right because the administration of justice was affronted.

Justice Hugo L. Black: That’s right.

Ms Carol Mary Los: I feel that in 1966, --

Justice Hugo L. Black: Well, that’s going back to the saying, well, this is retroactive.

Ms Carol Mary Los: Yes, Your Honor and I think that we must judge this in terms --

Justice Hugo L. Black: You wouldn’t think so now, would you?

Ms Carol Mary Los: Oh, no.

Certainly not now, Your Honor.

Chief Justice Warren E. Burger: But if we remand as you intimated might be one solution, is the case going to be tried under 1966 standards or 1971 standards?

Ms Carol Mary Los: I think it’s only fair that if we are going to judge what a trial judge did in 1966 under their standards, that he do it in terms that the hearing be done in terms of what was the law in Pennsylvania at that time.

Thank you.

Chief Justice Warren E. Burger: Thank you, Miss Los.

I think your time is consumed Professor Reitz, unless you have something to consider with high urgency and we’ll give you a little bit of time for that.

Rebuttal of Curtis R. Reitz

Mr. Curtis R. Reitz: I want to make just one point, Your Honor and that is on the issue of retroactivity that has been discussed.

Miss Los has testified at some length, the matter is not in the record which, of course, her testimony could not even be part of the trial on a remand.

It is to me a shocking thing to hear in any Court, 1970 a suggestion that even in 1966.

No matter what one views the law in 1966 to be that it would raise any question that a man is entitled to a trial on a punishment that could produce 22 years of sentence.

Chief Justice Warren E. Burger: Professor Reitz, you acted at our request and by our appointment in this case and on behalf of the Court, thank you, for your assistance to the client and to the Court.